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Roe at Forty, part 1: The Court’s Failure to Address the Question of the Unborn’s Moral Status Print E-mail
By Francis J. Beckwith   
Friday, 04 January 2013

Later this month on January 22, many will commemorate, in sadness, the fortieth anniversary of Roe v. Wade, the Supreme Court decision that declared virtually all restrictions on abortion unconstitutional.

Although prolifers reject this opinion because of its exclusion of the unborn from the class of protectable human beings, most prolifers, like most Americans, rarely understand why many scholars, including abortion-choice supporters, consider Roe to be a badly reasoned opinion. (For an extensive analysis, see my 2006 Liberty University Law Review article).

The 1965 case of Griswold v. Connecticut set the stage. In that decision, the Supreme Court discovered a right to contraceptive use by married couples (later by the unmarried in Eisenstadt v. Baird [1972]), based on the “right of privacy.” Although that right is not found in the Constitution, the Court opined, in a plurality opinion, that it could be inferred from the “penumbras and emanations” of several amendments in the Bill of Rights.

For supporters of abortion choice, the application of this was obvious: because abortion is an exercise of the reproductive rights discovered in Griswold, the right of privacy must be extended to include a right to abortion. However, it was not that simple. For, unlike contraceptive use, abortion required the destruction of what appeared to be a third party, the unborn child.

Because the several states had banned abortions for quite some time, with only a few passing more permissive laws in the decade preceding Roe, it seemed to a citizen of ordinary wit that all the state governments within the United States had at some point in their histories decided that the unborn child deserved the protections of the law.

But if that is the case, it would seem nearly impossible for the Court to take the reasoning of Griswold, that had been applied to a self-regarding act engaged in by consenting adults, and extend it to include an act that results in the death of an innocent third party.

Justice Harry Blackmun, author of Roe’s majority opinion, found a way around this apparent roadblock. He offered three reasons for rejecting the unborn child’s presence in this dispute:

(1) The Constitution, though it employs the word “person” in several places, does not define what a person is as such;

(2) Because the state abortion bans were not intended to protect the unborn child, but rather to protect the pregnant woman from dangerous operations, they no longer serve a state purpose, since abortions are now relatively safe; and

(3) Because experts, such as theologians, physicians, and philosophers, disagree about when life begins, the Court will not offer any opinion on the matter.



           SCOTUS in '73

Although the first reason is indeed true, it proves too much. For it would mean that unless the Constitution explicitly defines a word, we cannot know what the word means. The principle on which this reasoning relies – that the Constitution must include in its text all that is necessary to interpret it – would mean that the Constitution is literally incomprehensible, since it also does not include the rules of proper eighteenth century American English grammar.

Blackmun’s second reason is just flat out wrong. His analysis of state abortion laws was based almost exclusively on two law review articles written by Cyril Means, an attorney for the National Association for the Repeal of Abortion Laws (NARAL). These articles, along with Blackmun’s use of them, have come under trenchant and withering criticisms in an astonishingly large number of academic periodicals in the past four decades.

James S. Witherspoon wrote what is perhaps the most thorough scholarly article that addresses Blackmun’s account of these state laws. After an extensive analysis of the nineteenth-century passage of these statutes, their legislative histories, and the political climate in which they were passed, he concludes: “[T]hat the primary purpose of the nineteenth-century antiabortion statutes was to protect the lives of unborn children is clearly shown by the terms of the statutes themselves.” (The best scholarly book on this subject is by Villanova law professor, Joseph W. Dellapenna: Dispelling the Myths of Abortion History).

Blackmun’s third reason confuses the scientific question of when an individual human life comes into being with the philosophical question of when that individual human life becomes a moral subject. For no one seriously denies that, as a matter of scientific fact, an individual human life either begins at conception (which is the majority position) or begins at least within two weeks after conception, long before a pregnant woman typically gets an abortion.

There is indeed disagreement on the philosophical question. Some believe, as prolifers do, that a human being is a moral subject as long as he is alive, even before he exhibits the personal powers that come with maturity. Others believe that it is those personal powers – the immediate ability to communicate, possess self-consciousness, to have a life plan, etc. – that impart moral worth to a human being.

As I have noted on this page, as well as elsewhere, this view confuses being a person with functioning as a person. Regardless, wouldn’t Blackmun’s appeal to expert disagreement justify a state interest in prohibiting abortion, since the state may want to err on the side of innocent human life when experts disagree over whether the act in question results in unjustified homicide?

Roe v. Wade, despite its popularity in some circles, is based on a flimsy, to put it  mildly, jurisprudential foundation.

 

Francis J. Beckwith, Professor of Philosophy and Church-State Studies at Baylor University, is the author of Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University, 2007) as well as Politics for Christians: Statecraft is Soulcraft (InterVarsity Press, 2010).
 
 
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Comments (11)Add Comment
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written by Michael Paterson-Seymour, January 04, 2013
I am not sure that acknowledging the moral status of the unborn would greatly advance the pro-life case.

In France, the Veil Law of 1975 (Law No. 75-17 of 18 January 1975), in its first article, declares, ““The law guarantees respect to every human being from the commencement of life. No derogation from this principle is permitted, except in the case of necessity and according to the provisions defined by the present law.”

It then proceeds to decriminalise abortion up to the tenth week of gestation.

In other words, the National Assembly, too squeamish to establish abortion as a right, sanctioned it as a derogation from a right, namely, the right to respect for life.
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written by Manfred, January 04, 2013
I would suggest that Griswald and Roe have virtually nothing to do with rights or personhood and everything to do with restricting population growth. Why did Fr. T. Hesburgh, president of Notre Dame, introduce John D. Rockefeller, at Rockefeller's request, to Paul VI? Why was there so much pressure on Paul VI on the contraception issue, and why was there, to this day, a civil war in the Church itself when Humanae Vitae was issued? Why are most abortuaries in urban and poor areas? For the same reason we will shortly have euthanasia as national public policy: to get rid of the "useless eaters". It is the same reason this country wages war around the world on Islam: Muslims have a higher birthrate than the West and the result can be seen in Israel which fears for its very existence if it was ever forced (by the U.N.?) to be truly democratic. America has been a massive fraud for decades as the same-sex "marriage" issue makes abundantly clear. The right to kill or deport Catholics (the REAL ones) will be found in the Constitution very shortly.
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written by Meredith Eugene Hunt, January 04, 2013
Roe v. Wade is a flimsy veil of rationality draped over the raw power to kill prenatal children. Only a power in the opposing direction—the power to save—will bring change.
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written by Howard Kainz, January 04, 2013
Roe v. Wade in effect relegates abortion to a special category in jurisprudence -- the idea of purely private murder (like suicide). Since laws are geared to provide for public security and welfare, someone's abortion doesn't seem (so the logic goes) to affect my life or yours.
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written by Sue, January 04, 2013
Manfred, not sure about the Islam connection (Islam has a way of working with the Fabian socialists and Communists, too - see Olave de Carvalho and his InterAmerican Institute) - but you slam dunk the elephant in the room - the Rockefeller corruption of the AmChurch via Hesburgh and associates. E. Michael Jones (proud bearer of a SPLC "hate" badge) has penned a blockbuster history of the Rockefellers and the American hierarchy in "Libido Dominandi".
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written by athanasius, January 04, 2013
Manfred, I believe you are right on the population control issue, at least for a certain portion of the pro-abortion population. Many radical environmentalists view human beings as being parasites on Mother Earth, whom they seem to worship as a goddess. I have seen these people interviewed on TV where they say the Earth can only support about 1 billion people (where they get this nonsense is beyond me). Of course, they always have other people in mind when it comes to deciding whom should be eliminated. The unborn are an easy choice because, as Pope John Paul II said, "They don't even have the benefit of tears to use as a defense."

I read somewhere recently that liberals view people as liabilities, as mouths to feed. Conservatives view people as assets, as treasured individuals who add to the world and contribute to its richness. Is it any wonder why modern liberals promote the culture of death while conservative promote the culture of life?
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written by Stilbelieve, January 05, 2013
The issue is not that the court doesn't accept science; the issue is between a political issue and a spiritual one. Not until the Church accepts fighting for the unborn on spiritual grounds will we ever have any success in stopping the legal murder of the unborn, and in some cases, the born.

The spiritual issue is: Do Catholics who recite the Profession of Faith, and pray the Lord's Prayer believe what they say they believe and pray for? In other words, is a Catholic's word - good? I'd say for at least half of the Catholics, including the clergy - their word isn't worth a damn. My reason for saying that is because half or more of Catholics who voted in this recent election, voted, again, for the pro-abortion, pro-homosexual marriage, pro-covet thy neighbors' goods, and pro-attack the Catholic Church - party - the despicable Democrat Party...the party I was born and raised in on the south side of Chicago. When my party at the time started to support Roe v. Wade and abortion, I removed my name from that party and stopped voting for them. I chose the reality of my professed beliefs and prayers than the falsehoods of my political party. I haven't voted for a Democrat since.

Interestingly, since then, I learned that a sin against the 5th Commandment is denying a person their human rights based on color or religion. And it is "particularly a sin when one joins an organization that promotes the denial of human rights." Examples given by the USCCB are the Nazi Party and the KKK. My question to the bishops is - Why have you not identified belonging to the Democrat Party a sin against the 5th Commandment for the denying the right to life to the unborn? If it is a sin for the mere expression of bigotry towards a person based on color or religion, why is it not a grievous sin to join an organization that is solely responsible for the murder of some 55,000,000 human babies, and still counting?


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written by Bain Wellington, January 08, 2013
Mr. Beckwith's argument seriously distorts Justice Blackmun's reasoning.

Beckwith's reason (2) (allegedly offered by Blackmun for "rejecting the unborn child's presence in this dispute") traduces what Blackmun actually wrote.

In Part VII of his Opinion he noted that "three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence". Those were (i) discouraging illicit sex; (ii) the State's interest in protecting the woman's own health and safety (still valid, even with modern medical advances, when an abortion is proposed at a late stage of pregnancy); and (iii) "the State's interest -- some phrase it in terms of duty -- in protecting prenatal life".

According to Blackmun, "It is with these interests, and the weight to be attached to them, that this case is concerned". Clearly, the Court did not reject the State's interest in protecting prenatal life, although it circumscribed it – just as it circumscribed what it held was a woman's right to terminate her pregnancy.

The exercise the Court undertook – wrongly, as the magisterium holds – was to attempt to strike a balance between what it saw as the competing interests of the mother and the unborn child. Now, commentators can argue that the balance was struck in the wrong place, but it is patently false to claim that the rights of the unborn were disregarded altogether.

In this connection, it is important to recall that, as at the date of Roe v. Wade, no State absolutely prohibited abortion – there were always exceptions (the irreducible minimum was so-called therapeutic abortion to save the life of the mother). See footnote 54 of Justice Blackmun's Opinion. Thus, even States with highly restrictive anti-abortion laws also, to this extent, "[excluded] the unborn from the class of protectable human beings".

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written by Francis J. Beckwith, January 09, 2013
Mr. Wellington:

Saying that the state has an interest in prenatal life is not the same as saying that prenatal life has interests. Because the Court did not require that the state forbid abortion at any point during pregnancy, it clearly denied the latter. The fact that it allowed the state to include some restrictions in the third trimester was in fact based on what the Court considered the state's legitimate interest in prenatal life, but those interests have nothing to do with any rights the unborn may have under our Constitution or that can be traced to natural rights.

If you read my larger piece on Roe--to which I link at the beginning of this essay--you will see that I in fact discuss extensively the Court's attempt to balance interests. My point in this Catholic Thing entry was to assess how Justice Blackmun was able to sequester from consideration the most important question in this dispute: is the unborn one of us? By trying to find a definition of person in the Constitution, by distorting the intent of the 19th century statutes, and appealing to disagreement among experts, Justice Blackmun was able to side-step the issue of fetal personhood while pretending to confront it.

As for your last point, I address it extensively in two footnotes in my larger piece linked above. But setting that aside, the fact that criminal law allows for justified homicide does not mean that the current law for the postnatal "excludes the born from the class of protectable human beings."
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written by Bain Wellington, January 13, 2013
Thank you for your response Mr Beckwith, and my apologies for a tardy reply.

My comment was on a very narrow point, relating to Justice Blackmun's ratio decidendi. Far from conceding, you now claim Blackmun "distort[ed] the intent of the 19th century statutes".

You must excuse me if I keep my focus. We both agree, I am sure, that anti-abortion argument must be rigorous and scrupulously fair.

So I repeat that Justice Blackmun did not rely on your argument (2). He mentions it as an argument put forward by proponents who asserted that the only legitimate interest that the state possessed here was in protecting the woman's health. This is what he wrote (Opinion, Part VII at p.151):-

"Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. . . There is some scholarly support for this view of original purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health, rather than in preserving the embryo and fetus."

Contrary to what you wrote, Justice Blackmun did not give an "analysis of state antiabortion statutes", let alone to the effect set out in your alleged argument (2). The nearest he got was to say:- "[t]here is some scholarly support for this view of original purpose".

But anyway, that was an extreme argument on one side. The Supreme Court rejected it. The woman's health is not the sole legitimate interest that the state upholds when passing an anti-abortion statute; the Court vindicated (although it circumscribed) the state's interest in protecting prenatal life.
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written by Meredith Eugene Hunt, January 23, 2013
Mr. Wellington,

Still on the books in North Carolina from 1881:

Article 11.
Abortion and Kindred Offenses.
§ 14-44. Using drugs or instruments to destroy unborn child.
If any person shall willfully administer to any woman, either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or other substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, he shall be punished as a Class H felon. (1881, c. 351, s. 1; Code, s. 975; Rev., s. 3618; C.S., s. 4226; 1967, c. 367, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c 179, s. 14.)

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